With the legalization of cannabis behind us and holiday parties on the horizon, one question on employers’ minds is how to deal with cannabis use at staff parties.

Vicarious Liability

Employees need to be mindful of the doctrine of vicarious liability whereby employers are ultimately responsible for the actions and omissions of their employees in the course of employment. Liability is imposed to the employer not on the basis of the fault of the employer, but on the ground that as the person responsible for the activity or enterprise in question, the employer should be held responsible for loss to third parties that result from the activity or enterprise.

To take an example from the most similar context, when it comes to alcohol use at company-sponsored events, the courts have clarified that due to the nature of the employer-employee relationship, the standard of care imposed on an employer is higher than that imposed on a tavern owner.

In addition to their duty to maintain a safe workplace under the Occupational Health and Safety Act, employers who provide alcohol at a company-sponsored event are obligated to monitor the amount of alcohol consumed by employees; and take positive steps to prevent an employee from driving home after drinking. Such steps include: demanding the employee for their car keys, paying for a cab to send the employee home safely, calling the police, calling a contact to come and take the employee home, or physically stopping the employee from hurting themselves or others.

Where employees drive while intoxicated and subsequently get into a serious car accident after leaving a workplace event where alcohol was served, employers may be found vicariously liable for the actions of their employees.

How Does This Apply to Cannabis?

The legalization of cannabis further complicates matters. As stigma around cannabis use decreases, it is not out of the question to picture employees consuming cannabis at a Company-sponsored event, such as a staff holiday party.

One way to deal with this potential problem is through a Company policy. The use of alcohol, cannabis and drugs at Company-sponsored events can be addressed in a drug and alcohol policy. If the nature of your industry involves requiring employees to attend many events in which they represent the Company, whether the events are sponsored by the Company or not, an employer may want to consider having a separate policy on events.

One question I’ve been asked often from beleaguered employers is: even if we address cannabis use in a policy, how can we justify treating cannabis any differently than alcohol now that cannabis is legal? Although this area of law is still developing and we will have to wait and see how the doctrine of vicarious liability evolves with the legalization of cannabis, one main difference between the two substances is their availability to the general public and the systems in place behind distribution and service. An employer serving alcohol at a party would be prudent to do so through a licensed distributor (such as a restaurant or bar), or through people that are licensed and certified to serve alcohol. The reality is that these systems are not (legally) in place for cannabis consumption, and there is, therefore, no way to monitor consumption and ensure your employees’ safety. In other words, there is no such thing as a “cannabis server” or a  “Smart-Serve” certificate for cannabis distribution. Until such time, an employer may be able to justify making a distinction between alcohol and cannabis at a holiday party.

However, although an employer may have eyes and ears at the Company-sponsored function itself, an employee could always find a way to consume cannabis and escape the employer’s detection. For this reason, it is more important for an employer to focus on identifying impairment and circumstances where an employee may need an employer’s intervention to prevent them from driving while impaired, than to focus on identifying (and prohibiting) the source of the impairment.